Introduction. This book is designed to explain the process and procedures applicable to appellate litigation in state courts in Ohio from decisions of the Common Pleas, Municipal, County, or Mayor’s Courts. Though not intended as a complete practice guide or a substitute for mastery of the appellate rules, it can familiarize the lawyer who does not often practice appellate litigation with an outline of the conduct of an appeal and may prove useful to non-lawyers considering whether to appeal from a decision of a trial court. I will not cover the substance of appellate issues in this book; due to size and time limitations that will be addressed in a separate volume. This book also does not cite cases; the cases generally support what I say in this book, though every case is different and there are always exceptions.
This work begins with a discussion of a comparison between civil and criminal appeals and the relative strategies of each, then the details of preserving issues in the trial court, the question of what orders are final and appealable, and securing a bond or stay. On the technical side, this will cover the notice of appeal, designation of the record, motions practice on appeal, designation of the record, the prehearing statement, deadlines, and the drafting and submission of a brief. Finally, it will cover the appellee’s brief, oral argument, and outcomes.
Rules in law sometimes remain in place for decades, but they can change quickly without warning. By the time you read this the law may have changed such that my advice on a particular topic is no longer true or relevant; thus no guarantee or warranty is possible, and you should use what I say at your own risk. Hiring or being a top-notch lawyer is always advisable because sometimes those exceptions can get in the way of winning.
My qualifications. In thirty years in practice, I have won or helped to win a comparatively huge percentage of the civil and criminal direct appeals representing appellants. Representing the appellee who won at the trial court, I have never lost. My success rate in getting the court of appeals to undo what a trial court decided has been 37.3% over those 30 years. In criminal cases I have won or helped to win a reversal of the trial court in 39.1% of cases; in civil cases that percentage is 37.1%. Compare that to the average in federal courts of reversals in __ % of civil and __ % of criminal cases, or the average reversal rate in Cincinnati of __ % of civil and ___% of criminal cases.
I earned my Bachelor of Business Administration (B.B.A.) degree from Ohio University in 1987, with minors completed in Economics, Finance, Management, General Business, and Business Pre-Law. I went on to earn my Juris Doctor (J.D.) degree in 1991 from Capital Law School in Columbus, Ohio, and was awarded the scholastic honor of Order of the Curia. Finally, I secured my Master of Laws degree (LL.M.) in business and taxation in 1994, also from Capital University. In thirty years in practice, I have made or seen most if not all the mistakes that can be made, and so I offer this short work to help others avoid those mistakes.
Appellate basics. A person (natural or a corporation) who gets less than it had asked for from a trial court or administrative agency can seek to fix mistakes in the final procedure or decision, including all previous non-final matters. Note that the “winning side” can often still appeal if it got less than it wanted.
Who can appeal? An appeal can be taken by any party to a case who receives less than it had asked for in its complaint, answer, counterclaim, cross-claim, or third-party claim. While hiring a lawyer may improve the odds of success on appeal, there is no requirement that an individual do so (though a corporation cannot file in a court of record without a lawyer). A natural person is free to represent themselves and is called a pro se party, but such a person cannot represent a corporation.
Civil appeals. In a civil case the standard of proof at the trial court for most issues is a preponderance of the evidence, generally considered to be proof by the greater weight of evidence, and sometimes considered to be 51%. On appeal in a civil case there are two standards of review: if the court determined the outcome in a summary judgment proceeding without a trial an appellant must show that the judge erred in making the decision – this is called a de novo standard of review. In effect the court of appeals will look at the evidence with a fresh eye and does not assume that the trial judge got it right. If there was a trial, review on appeal is based on whether a preponderance of the evidence supports the decision.
Criminal appeals. In a criminal case the question is whether guilt was proven beyond a reasonable doubt, or whether the sentence imposed after a guilty verdict was too harsh. In a criminal case the standard on review is whether any reasonable judge or jury could have found the defendant guilty on each particular charge or whether the court abused its discretion in sentencing a defendant who was properly found guilty. Officially the requirement in a criminal case that guilt be proven beyond a reasonable doubt would appear to make it more common for a decision in favor of the defendant; the preponderance standard used in civil appeals should make vindication more likely (with the O.J. Simpson case as the best example of this concept – he was criminally acquitted but found civilly liable). This should also create a greater likelihood of reversal of a criminal conviction on appeal. But the reality is more complex because voluntary and involuntary dismissals substantially impact the odds of reversal. For example, in civil cases the Court of Appeals for Hamilton County dismissed 47.8% of all appeals filed in 2017. Of criminal cases, it dismissed exactly 33% of appeals filed that year. Finally, 55.5% of extraordinary relief cases were dismissed.
Prosecution appeals in criminal cases. While the prohibition on double jeopardy in the Bill of Rights provides that a person who has been acquitted by a jury cannot be put on trial for that same offense a second time, the prosecution can still appeal adverse decisions in a case to establish a precedent for later cases. There are quite a few limitations in the protection against double jeopardy. To appeal the prosecutor must certify that a trial court order suppressing or excluding evidence, or an order directing pretrial disclosure of evidence, would leave it unable to proceed. There are very strict requirements and deadlines for the prosecution to meet in order to appeal. Another situation for prosecution appeals is where the state intends to argue that the trial court’s decision should be affirmed but amended; unless an appeal is filed by the state the court of appeals lacks jurisdiction to amend the sentence.
Administrative appeals. An administrative agency in Ohio has discretion to decide any dispute as it deems appropriate so long as it complies with the procedural requirements set forth in the enabling statutes passed by the legislature. In an administrative appeal, a judge will determine whether the administrative agency abused its discretion; the question is whether the decision is based upon relevant factors and whether there has been a clear error in judgment on the agency's part.
Interlocutory Appeals. By definition an interlocutory order is not a final appealable order; that has not stopped lawyers from trying to appeal such orders. But we do not always know when an order is final and appealable and when it is interlocutory. There is no magic language which controls; even where trial judges believe they are signing a final order the court of appeals is free to disagree and dismiss an appeal for lack of a final order. Trial judges often include language in orders which are not final stating that they are final and appealable – the court of appeals regularly disregards the trial judges’ opinions on that issue.
Special Proceedings. An order in a special proceeding is a final order, even if that proceeding is going on within another type of case for which there is no final order. The most common, yet very confusing, type of special proceeding is contempt – if a trial court holds someone in either civil or criminal contempt and imposes a sanction (even if it has not set a condition to purge a civil contempt ruling), then the contempt order must be appealed immediately. An order that physician-patient confidentiality should be breached is also a special proceeding, though discovery disputes are otherwise considered not final. And the appointment of a receiver is a final appealable special order, though an order governing the actions of a receivership is not. The granting of a motion for a new trial, or a court ordering a new trial without a motion, is a final appealable order by virtue of a statute and a civil rule expressly stating that each situation constitutes a final appealable order. Many final appealable orders give no indication that they are final and appealable – the trial judges seem to prefer that people not to know that their rights are dependent upon filing an objection within fourteen days or a notice of appeal within thirty days.
Odds of Success on Direct Appeal. I began researching the outcomes of appellate cases with the Cincinnati courts in Hamilton County, Ohio, because they have had electronic filing the longest. I began researching those cases in 2009 searching for patterns and best practices. In 2019: ________________________________. In 2017, the odds of securing a reversal in the Court of Appeals of Hamilton County were almost exactly the same in civil and criminal cases. Of civil cases filed that year 13.7% resulted in reversals; for criminal cases the reversal rate was 14%. In 2015, on the other hand, the reversal rate for civil cases was only 8.75% and for criminal cases it was 11%. In 2013 civil cases were reversed 14.4% and criminal cases 16.6% of the time.
Common law. Every court is bound to obey the prior decisions of the courts which are superior to it. The Latin terms “stare decisis” and “res judicata” mean that the courts are bound by prior decisions regardless of how they might prefer to rule. To win on appeal requires either convincing a court that the prior case decisions were wrong (something which happens extremely rarely) or that the facts of the present case are different enough from the prior cases that the outcome should not be determined by what happened in the past.
Strategy & Outcomes. Reviewing the cases which were reversed leads to some interesting lessons. The variability in outcomes arises from the details of each case; drawing broad conclusions as to the likelihood of securing a reversal is difficult.
Preserving the record. Winning an appeal starts at the trial court; if no issues are developed in the trial court an appeal cannot succeed. It is important to note here that no new evidence can be shown to the court of appeals – only facts reflected in the record from the trial court are properly before the appellate court.
Objections and rulings. Trial counsel must have objected to objectionable evidence to preserve the issue for appeal. Ohio Rule of Evidence 103 provides that there must be a timely and specific objection or motion to strike made to admission of evidence. If the trial court erred by excluding evidence, a timely record must have been made to what the evidence would show unless it is obvious. A proffer is not necessary if the issue arose during cross-examination of a witness. The transcript must make this clear – if unclear, the court of appeals will presume that the trial judge got it right. This is true even if a motion in limine to prohibit the introduction of evidence was denied—an objection at trial must be made to preserve the issue for appeal.
Failure to object. In a civil case, a failure to object to inadmissible evidence generally waives the issue; in a criminal case it is possible to argue that the defendant was prejudiced by the failure of defense counsel to object. In that situation to court of appeals will look to see whether three elements of plain error are present: 1) there was a deviation from a legal rule; 2) the error was an obvious or plain defect in the trial proceedings; and 3) the error must have affected substantial rights, meaning that the error affected the outcome of the trial.
Magistrate orders. To be valid, a magistrate’s orders (also sometimes called a recommendation) must be identified as such in the caption, be signed by the magistrate, be filed with the clerk of courts, and be served on all parties. Objections to a magistrate’s decision must be made within 14 days of its filing. The objections must be supported by a transcript of the relevant evidence filed within 30 days of the filing of the objection (unless extended by the court). Failure to timely object to the magistrate’s order waives all except plain errors. The objection must be specific; a general objection is insufficient.
Evidence problems. Ohio Rule of Evidence 103 requires that an appellant can argue that the trial judge made a mistake in admitting or refusing to admit evidence only if an objection or a motion to strike the evidence was made at the time the evidence was admitted, or an offer of proof made at the time the judge ruled the evidence inadmissible. The judge’s ruling must be on the record. If an objection, motion, or proffer was made to the admissibility of the evidence and the trial court got it wrong, the standard of review is whether the trial court abused its discretion and its error resulted in injury to the objecting party. If no objection was made the standard of review is whether an error occurred which was so extreme that it affected the outcome of the proceedings and must be corrected to prevent a manifest miscarriage of justice.
In limine motions. If a motion to prevent a party from introducing particular evidence is denied by the judge before trial, an objection to the evidence must still be made at trial in order to preserve the issue for review by the court of appeals.
Appealable Orders & Finality. There are few things worse than spending time and money appealing a trial court decision, presenting briefs to the court of appeals, and arguing in person to the judges of the court of appeals at oral argument, only to lose because of a technical error. Yet almost 30% of appeals filed in Cincinnati’s state court in 2017 were dismissed despite the wishes of the appealing party. Do not be the person who spends thousands of dollars paying an attorney to appeal a decision only to lose because the trial lawyer made a mistake. The first part of this work addresses those technical issues.
What constitutes a final appealable order is a complex matter. In Ohio all orders entered by a court prior to the final appealable order are merged into a final appealable order, so that there is no need to separately name all of those interlocutory orders in the notice of appeal. Orders in special proceedings do not merge, though, and it is sometimes difficult to determine whether an order constitutes such an order – occasionally it is wise to appeal what might later be interpreted as a final order in a special proceeding, accepting the possibility that it will later be held not to be a final order and be dismissed.
Attempts to have the court of appeals issue an advisory opinion, such as whether some contemplated conduct by a person or entity would be legal or proper, are always dismissed. The courts do not exist to advise people but to determine actual controversies to determine liability and damages for past actions.
Some people think that it is not until the trial court notifies the parties that it has entered a final appealable order that the deadlines to appeal begin to run. This is incorrect, and a trap for the unwary. Some judges designate every order as being a final appealable order, but that is similarly incorrect – appealing from a non-final order eventually results in the dismissal of the appeal – sometimes quickly and sometimes after months or years on the appellate court docket (even sometimes after oral argument is conducted).
Finality of a civil judgment in Ohio is determined by Ohio Revised Code §2505.02 and Rule 54(B) of the Ohio Rules of Civil Procedure. The Code sets out the types of orders which are final and appealable: 1) an order that affects a substantial right (a right that the court have held is protected by a constitution, statute, prior court decisions, or a rule of procedure) and that effectively determines the issue in the case; 2) an order that affects a substantial right made in a special proceeding (such as Juvenile Court temporary custody orders); 3) an order vacating or setting aside a judgment; 4) an order granting or denying a provisional remedy (such as an order disqualifying an attorney from representing a party to a case); 5) an order finding a statute unconstitutional; or 6) an order in an appropriation case in which property is taken by the government. Civil Rule 54(B) allows an appeal where there are multiple parties to a case, or multiple claims at issue in a case, if but only if the trial court makes an order allowing an appeal by stating in an entry that there is “no just reason for delay.”
It is sometimes necessary to file an appeal and go through the process even if there is doubt as to whether the order was final and appealable – that would be true where the law is unsettled. One suggestion to resolve that issue is to file the notice of appeal and then to move to stay the appeal and remand the case to the trial court to determine whatever issue is unresolved. The court of appeals can then either stay and remand the case or will dismiss the appeal for lack of a final order – either way the appealing party should be protected from any later ruling by the court of appeals that the appeal was filed too late. After the notice of appeal is filed the trial court loses jurisdiction of the case unless it is remanded by the court of appeals to resolve some issue.
Avoiding Mootness. Payment of a civil judgment in full or serving out a criminal sentence make an appeal moot and thus subject to involuntary dismissal. It is important that if a judgment is granted that the appealing party move to post a bond and ask for a stay of enforcement in a civil case or move to stay the sentence in a criminal case. Paying a civil judgment is the wrong thing to do, and even people represented by very expensive lawyers have made the mistake of cutting a check to the other side as a way to avoid involuntary collection – but they then wasted all of the time and money spent on the appeal as voluntary payment constitutes a waiver of the appeal.
In a criminal case, if the defendant has completed serving the sentence, even if that sentence was decreased by the probation office resulting in completion of the terms of probation, results in the appeal becoming moot unless the defendant can prove that he or she is subject to a collateral disability. Thus where a defendant has paid the fine and served the days, the court of appeals should dismiss the case as moot.
Notice of Appeal. An appeal from a trial court decision begins with filing a notice of appeal within 30 days. The notice should be accompanied by a docket statement and payment of the appellate fee. That fee varies among courts and over time, but the information on the filing fee is generally available on the court’s website. If the fee is not paid with the notice of appeal the appeal may be dismissed; the same is true of the docket statement. It is therefore advisable to go to the trial court clerk’s office with a blank check and fill in the dollar amount only after the clerk determines the appropriate amount – that avoids the possibility of having the case dismissed for underpayment or for failing to file the docket statement. These mistakes can often be fixed, but it is better to do it right in the first place rather than hoping to fix it later.
Deadline for Filing a Notice of Appeal. Determining when the time has begun to run for filing a notice of appeal is complicated – what appear to be ordinary non-appealable orders may ultimately be found to have constituted a final appealable order in a special proceeding within the main case. Failure to have filed the notice of appeal within thirty days of the date the entry was filed may prevent issues from being considered later.
Service. Ohio Rule of Civil Procedure 54(B) requires that the court serve every judgment on the parties who have appeared in a case. The clerk is to serve the parties within three days of the order and note the service in the court records. Some sources incorrectly assert that the 30-day period for filing a notice of appeal does not start to run until the trial court clerk serves the notice of entry of judgment. This is not true in Ohio, and not supported by the cases interpreting Civ.R. 54 and App.R. 4. The time deadline starts with the court’s entry of judgment, not with the receipt of the notice of the judgment.
Mailing. The service date noted by the clerk is relevant only if the clerk fails to mail the judgment to the parties within three days of its entry; where that happens additional time is added to the appeal time. But where the clerk timely sends notice to the parties within three days of an entry, the 30-day period begins to run on the date of judgment, which is the date the judge signed the order, and the service date is irrelevant.
Pre-final order deadlines. Some orders which do not appear to be final can be treated as being final, so failing to immediately appeal them waives any opportunity to appeal a wrong decision. The main one is sanctions against a person or an attorney, either civil contempt or criminal contempt. Similarly, a decision disqualifying an attorney is a final, appealable order.
Form. There are various forms published by courts of appeals for their districts in Ohio. I recommend using those official forms so that no argument can be made that the notice was ineffective. In addition, I always attach a copy of the final order on which the appeal is based and add language to the notice of appeal that it is the attached order that is being appealed so that there can be no doubt if there is a discrepancy. Some appellate districts in Ohio require that the notice of appeal contain a certification that the judgment or order appealed from is a judgment or order that is final under both R.C. 2505.02 and Civ.R. 54(B).
Where to file. File every Notice of Appeal in the trial court clerk’s office, not with the court of appeals clerk. Service requirements vary from place to place – some require that the appealing party include a certificate of service on the notice of appeal stating that the notice has been sent to every other party in the case, while others do not. It is wise to include the certificate of service to avoid a problem – it only takes a few minutes and a couple of stamps to mail a copy to everyone involved.
Fees. Unless the person filing an appeal files an affidavit of indigency, the court requires payment of a fee. The amount of the fee varies from district to district, ranging from $15 to appeal from the Hamilton County Municipal Court to _______________, but is commonly around $100.
Costs. Costs include expenses in preparing the record, fees allowed by law, and the fee for filing the appeal. The general rule on who is responsible for the costs of an appeal is that if it is dismissed or the judgment is affirmed, appellant is responsible, if the trial court is reversed the appellee is responsible, or if if the judgment is affirmed or reversed in part or is vacated costs will be determined by the panel of judges who decided the case.
One notice of appeal or one for each case number? Some appellate courts in Ohio specifically require one notice of appeal be filed for every trial court case number – where cases have been consolidated by the lower courts this can cause a problem. To determine the correct procedure requires reading the local rules of the court of appeals, or to be safe, simply filing multiple notices of appeal and moving to consolidate the appellate cases. This can be expensive, as each notice of appeal requires a separate filing fee, so if you have read the local rules of the court of appeals and they are silent on the subject, it is probably safe to file a single notice of appeal noting all the case numbers if the trial court did so in its final order. If what you think is a final order does not list all case numbers, then separate notices of appeal will need to be filed for each trial court case.
Procedure in the Court of Appeals: It is important to recognize that unlike many states the courts of appeal in Ohio are not unitary – each runs its own show and has its own rules. Review and familiarity with the local rules of the appropriate court are crucial.
Docket statement. Each district requires some form of docket statement, by which the appealing party tells the court how long it will take the get transcripts filed, the nature of the case, and whether the case should be on an accelerated or regular calendar. The docket statement is usually filed along with the notice of appeal but is not jurisdictional – failing to file it with the notice of appeal will result in an order that it be filed or the appeal will be dismissed, but the effective date of the appeal is when the notice was filed, not when the docket statement is filed.
Motions. Motions may be either procedural or substantive. If it is possible that the order from which the appeal is taken is not, in fact, a final appealable order, it may be useful to move to remand the case to the trial court after filing of the notice of appeal in order to resolve any final issues. This odd situation may occur where there is some reason to suspect that an order which does not resolve every issue in a case could later be held to be a final order (with the result that you never get to appeal that issue). The problem can be somewhat avoided by asking the trial judge to issue a finding pursuant to Civ.R. 54(B) that there is no just reason for delay. The court of appeals is free to disagree with the trial judge, however, so even when this happens an appeal may be subject to dismissal.
- Deadlines & Extensions
- Failure to file
- Drafting the Brief
- Oral Argument
- Table of Contents
- Table of Cases and Authorities
- Statement of the Issues
- Statement of the Case and Facts
- Assignments of Error
- Standard of Review
- Certificate of Service
- Technical Requirements
- Brief of Appellee
- Appellant’s Reply Brief
- Reconsideration and En Banc
- Criminal Rule 26(B)(1) provides that a defendant in a criminal case may move to reopen an appeal based on ineffective assistance of appellate counsel.
- Motion for rehearing: A motion for rehearing must be filed within ten days of the announcement of an appellate decision, though if that tenth day is on a weekend or holiday the deadline is extended to the next day the courts are open.
- State of Ohio v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992):
- Set forth colorable claim of ineffective assistance of appellate counsel;
- Claims would be barred by res judicata if allowed to stand;
- Reasonable probability that the new assignment of error would have been successful if raised on direct appeal.
- Per Strickland v. Washington, 466 U.S. 668 (1984):
- Show that appellate counsel’s performance fell below an objective standard of reasonable representation;
- Prejudice arose from failure.
- Show result of the direct appeal would have been different if other issues had been advanced by appellate counsel.
- Supreme Court Petitions
- Harmless error. Even if a trial court makes a mistake, the final decision will be reversed only if the mistake affected the outcome of the trial, judged after the fact. The burden of proving that the mistake did not change the outcome is on the party who benefited by the evidence. The key on harmless error analysis is whether the error had a significant impact on the decision. Some errors are always harmful; those are primarily constitutional errors such as holding a criminal trial in the absence of the defendant.
- Other acts evidence: Evid.R. 404(B) provides that "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." But it does permit introduction of such evidence to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident – that is, if that evidence proves something other than a defendant’s propensity to commit an illegal act, then it is admissible if a balance test is performed and the value of the evidence is determined to outweigh the prejudice caused by its presentation to the jury.
- Sufficiency and weight of the evidence: An argument that the judge or jury made its findings incorrectly and despite the lack of evidence for the prevailing party, or that the weight of the evidence supports the losing party, is judged by whether a rational trier of fact could have found all of the elements of the claim. The court of appeals will weigh the evidence independently of the trial court and determine from the record whether it agrees with the trial judge or jury. It almost always does so unless there was no evidence presented on a key point.
- Cumulative error. A party who loses at trial may have to argue that the cumulative effect of many small mistakes, each of which was so minor that it could not result in reversal, combined to deprive the person of a fair trial.
Substantive issues: There are no guarantees that you will win on appeal. Statistically the most common outcome to any appeal is an order affirming the trial court’s decision. This second part of this book addresses the substantive issues and how to convince the judges that not only was an error made by the trial court but that the error was bad enough to require a new trial.